by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Stephen Breyer is retiring at the end of the current Supreme Court term, at the age of 83, after 27 years on the Court. We wish him good health and a happy retirement. We wish we could be equally cheery about the prospect that his replacement will be faithful to the Constitution and laws of the United States.
The first choice will be Joe Biden’s. With a 50–50 Senate and an impending fall election, he will have to choose carefully to ensure that his selection can be confirmed. Nothing in Biden’s presidency so far suggests that he will bother to interpret correctly what pivotal members of his Senate caucus are thinking before he makes his choice.
Biden has unwisely limited his options by preemptively declaring during the 2020 campaign that his first Supreme Court nominee would be a black woman. In a stroke, he disqualified dozens of liberal and progressive jurists for no reason other than their race and gender. This is not a great start in selecting someone sworn to provide equal justice under the law.
Unlike Donald Trump, Biden did not run on a named list of potential candidates, so he will then have to sell his nominee to the public. That nominee is almost certain to be a progressive who treats the written Constitution with contempt. Even if Democrats remain united enough to provide the votes to confirm such a nominee, Republicans should extract a political cost in the midterm Senate races for doing so. The last three cycles of Senate elections have shown that fidelity to the Constitution is a winning political issue for Senate Republicans.
With a difficult midterm looming and a Biden nominee needing to navigate a closely divided Senate, we hope we have heard the last for some time of talk about Court-packing.